ARRESTED JAILED OVERSEAS

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1 martrav ARRESTED traveller OR ler JAILED smar OVERSEAS artrave artrave

2 Contents Being arrested overseas...2 How we assist you...4 Possible financial assistance...7 Your welfare and the legal process...10 Health concerns...11 International Transfer of Prisoners Scheme...11 Pardons...12 Adapting to life in prison overseas...13 Passport cancellation and/or refusal in relation to serious foreign offences...14 Returning to Australia...14 Crisis payment - prison release...15 Information for family members...16 Getting help overseas...17 smartraveller.gov.au

3 When you are overseas, local laws and penalties, including ones that may appear harsh by Australian standards, apply to you. Some countries impose tough penalties including corporal punishment, life imprisonment and the death penalty. Each year around 1,000 Australians are arrested overseas and more than 250 are in prisons overseas at any one time. Being detained or jailed overseas, or having one of your relatives or friends arrested and in prison overseas, can be very traumatic, distressing and frightening. Prison conditions in many countries can be significantly harsher than those in Australia. If you are arrested overseas, you may face a significant period of detention before your case comes to trial. Legal and administrative processes may be substantially different from those in Australia and slow by our standards. This brochure is designed to provide information to help you understand what consular staff in Australia and overseas can do to assist prisoners and their families during this difficult time. When Australians travel abroad, they leave behind Australia s support systems, emergency service capabilities and medical facilities. The Australian Government will do what it can to help prisoners and their families as much as possible within the local and international legal framework. There may be limitations to what can be done and you should have realistic expectations about this. It is recommended that you read the Consular Services Charter, available at smartraveller.gov.au. You can ask a consular officer to provide you with a copy. Arrested or Jailed Overseas 1

4 Being arrested overseas The Australian Government cannot get you out of jail. If you are arrested overseas, you have the right to contact the Australian Government, but consular assistance cannot override local law, even when local laws appear harsh by Australian standards. The Vienna Convention on Consular Relations Many countries, including Australia, have signed the Vienna Convention on Consular Relations (copy available at treaties.un.org). This convention provides the framework that entitles a person who has been arrested, detained or jailed overseas to seek access to consular officers from their country of citizenship. Should you be detained overseas, you should ask to speak to officials from the nearest Australian mission. Addresses and telephone numbers of Australian embassies, high commissions and consulates can be found at dfat.gov.au/missions. What we can do to assist We will do everything in our power to assist Australians who are arrested or in prison overseas, but we must also work within the legal and administrative processes that apply in the country of arrest or imprisonment. We can: visit you while you re detained assist you in getting information about visitor procedures or accessing money or telephones provide you with a list of local English-speaking lawyers if authorised, arrange for your family or friends to be contacted and informed of your situation provide information to your family and friends to enable them to send you money 2 smartraveller.gov.au

5 discuss justified and serious complaints about ill-treatment or discrimination with the local authorities raise medical or dental issues with local authorities, should you fail in your attempts to have these issues addressed arrange a small loan from the Australian Government under the Prisoner Loan Scheme (subject to your location and strict eligibility criteria) monitor your court trials where applicable, provide you with information on the International Transfer of Prisoners Scheme administered by the Attorney General s department What we cannot do We cannot: get you out of jail, or give local authorities written guarantees to secure your release determine your innocence or otherwise conduct investigations provide you or your family with legal advice make recommendations as to which lawyer you should choose pay your lawyer s fees, instigate court procedures or intervene in local judicial processes seek better treatment for you than that provided to the foreign country s own citizens or other nationals arrange your bail or pay your fines provide interpreter and/or translation services. Arrested or Jailed Overseas 3

6 How we assist you Consular services The Department of Foreign Affairs and Trade (DFAT) provides assistance to Australians who find themselves in trouble overseas. This support is referred to as consular assistance. DFAT collects information regarding the overseas arrest or detention of Australian citizens for the purpose of providing consular assistance. Subject to the restrictions of the Privacy Act 1988 and other Australian laws, DFAT may be required to pass this information to Australian law enforcement agencies. Further information about how we collect, use, disclose and store personal information related to consular cases is contained in our Consular Privacy Collection Statement. Dual nationality The Australian Government seeks to extend to all its citizens, including dual nationals, the full range of consular assistance. However, under international law, countries are not obliged to recognise dual nationality. A country may not permit Australian consular assistance to be provided to an Australian citizen who, according to its own laws, it considers and treats as its own citizen. Additionally, a person might not be regarded as being an Australian if that person was not travelling on their Australian passport, which may also limit the Australian Government s ability to provide consular assistance. While consular officers will try to assist as much as possible, the extent to which we re able to help is determined by the foreign government. Foreign governments may not allow consular officers to provide consular assistance. They may deny consular visits and may not divulge information relevant to your case. In such cases the Australian Government will register its view with the local government that all Australian citizens are entitled to receive consular assistance; however, there s no guarantee that local authorities will make any allowances as a result of these representations. 4 smartraveller.gov.au

7 Consular visits If you re an Australian detained overseas and you request consular assistance, an Australian consular officer will visit you as soon as possible after notification of your detention and once permission is received from the local authorities. Timing of this visit may depend on the severity of the charge, your location and consular staff resources. Australian consular officers will not make assumptions about your guilt or innocence. Their primary interest is your welfare. When providing consular assistance to you when you re detained, consular officers will seek to ensure that you: have regular contact with a consular officer have access to legal advice are treated no less favourably than local citizens detained for similar offences are subject to humanitarian standards of prisoner welfare have your basic needs met. Consular officers may be able to assist you in obtaining information about local visiting, phone and mail regulations and censorship, privileges and social and welfare services. If available, consular officers will also seek to provide information on whether it s possible for you to work in the prison. If you were receiving Centrelink payments or were paying/receiving child support before entering custody, ask a consular officer about advising the Department of Human Services that you have entered custody so that you avoid accruing a debt. Consular officers will attempt to maintain contact with you throughout your period of detention, and should you be sentenced, your prison term. The frequency of visits will depend on factors such as the location of the prison, length of the sentence, and the availability of other local support. Arrested or Jailed Overseas 5

8 Seeking legal advice Australian consular officers will provide Australians detained overseas with information to help them obtain legal advice. While consular officers can provide you with a list of local Englishspeaking lawyers, consular officers are not lawyers and cannot provide you or your family with legal advice or make recommendations as to which lawyer you should choose. You have the responsibility to choose your own lawyer and maintain close interest in your case. Consular officers are not able to make representations to the court on your behalf. Consular officers are not able to provide interpreting services and you may need to make arrangements through your lawyer to obtain a suitable interpreter if required. Family liaison Consular officers will generally only pass on information to your family if you agree and provide consent. While you re in detention, we encourage you to maintain direct contact with your family or friends and keep them informed of your health and welfare needs. We also recommend that you allow your family to liaise directly with your appointed legal representative in order for them to stay informed about your case. However, consular officers won t be able to confirm your welfare or situation with your family unless you provide consent. If you re not able to make contact with your family, consular officers may be able to assist. Under the Privacy Act 1988, however, consular officers will generally only pass on information to your family if you agree and provide consent. If you don t want your family to be notified, your request will be respected and information will be withheld from your family and friends. Detainees relying on consular officers to provide information to family and friends should nominate one person as a primary point of contact. 6 smartraveller.gov.au

9 This ensures information is passed in a coordinated and managed way and avoids confusion. Possible financial assistance In the majority of circumstances, the Australian Government cannot pay your overseas legal fees or bail. Financial assistance from family In some countries, Australian prisoners, with the cooperation of prison authorities, are able to operate commercial bank accounts to receive funds from family and friends. If this is possible, a consular officer should be able to assist you with setting up the account or making other arrangements for you to receive funds from your family or friends to pay for lawyers or items you may need to purchase, such as phone cards or stamps. If prisoners are unable to operate commercial bank accounts, consular officers can assist by providing family or friends with the relevant information (or contact details of the prison, so additional information can be obtained) on the procedures for transferring funds to a prisoner. Financial assistance from the government In the majority of circumstances, the Australian Government cannot pay your overseas legal fees or bail. Irrespective of where you are, Australians are not entitled to receive Medicare benefits while in prison overseas. Prisoner Loan Scheme In some instances a consular officer may be able to arrange a loan for you from the Australian Government under the Prisoner Loan Scheme. Arrested or Jailed Overseas 7

10 However, a loan will only be arranged if: adequate food and medical facilities and other essentials such as bedding, clothing and soap are not provided by the prison you re unable to organise for a loan to be provided from family or friends and the country where you re imprisoned is on the approved country schedule. Loans granted under the Prisoner Loan Scheme must be repaid after your release. Failure to repay the loan may result in your ineligibility to obtain a new or replacement Australian passport, and your current passport may be cancelled if you ve incurred a debt for a loan from the Australian Government while in prison. Serious Overseas Criminal Matters Scheme Assistance under the Serious Overseas Criminal Matters Scheme is provided only in the most exceptional circumstances, usually if you re facing a possible period of imprisonment equal to or longer than 20 years, or the death penalty. In the absence of special circumstances that fit within the scope of the scheme: a lack of financial means to pay for legal fees is not sufficient in itself to justify the provision of financial assistance the availability of legal assistance in the overseas jurisdiction will usually mean you will not be eligible to receive financial assistance under the scheme. Applications can be made for grants to cover legal costs relating to the defence and other related expenses, however financial assistance provided under the scheme is not intended to be used to hire a private lawyer in place of an overseas court-appointed lawyer or public defender. 8 smartraveller.gov.au

11 Special Circumstances Scheme Assistance under the Special Circumstances Scheme is only provided where no other scheme of legal financial assistance applies, but there is a moral obligation on the Commonwealth to make a grant, or where a statutory scheme of legal financial assistance applies, but produces an unintended, anomalous, inequitable or otherwise unacceptable result. The fact that you are an Australian citizen does not create a moral obligation on the Commonwealth. For both schemes, assistance will not generally be granted to people who can meet their costs without incurring serious financial difficulty, are eligible for legal assistance in the overseas country, or do not have a continuing connection with Australia. The Attorney-General s Department will not normally cover the cost of any legal fees or expenses incurred before an application is made. How to apply If you wish to apply for financial assistance for legal fees, you ll need to complete the relevant forms, available from the Attorney-General s Department website. If you cannot access these forms online, ask a consular officer to provide them to you on their next visit. For further information about these schemes contact the Attorney-General s Department on (within Australia) or (outside Australia) during business hours. You can also visit Legalaidprograms/Commonwealthlegalfinancialassistance/Pages/ Seriousoverseascriminalmatters.aspx Arrested or Jailed Overseas 9

12 Your welfare and the legal process With your permission, consular officers, in consultation with your legal representative, can take up any justified and serious complaints about ill-treatment or discrimination with the local authorities. Whenever possible, prisoners should first make their complaints through the prison system and/or case manager prior to raising their concerns with consular officials. You should be aware that the Australian Government can generally only make representations to local authorities if you re receiving inferior treatment to that which would be given to a local prisoner there are lengthy and unreasonable delays in bringing the case to court or with the subsequent trial (in comparison to similar cases for locals in the country of your arrest) you re not receiving medical care The Australian Government may also consider making formal representations to the host government in support of applications for pardon or clemency and, if a prisoner is facing a death sentence, converting that sentence to a prison term. While the Australian Government will closely monitor the case and expect procedural fairness, there can be no guarantee that our actions will achieve your desired outcome or that the foreign government will respond to our representations. 10 smartraveller.gov.au

13 Health concerns If you have health issues, it s your responsibility to discuss these in the first instance with the prison authorities and ask to see the prison doctor or dentist. If you have ongoing health concerns for example, if you are or think you may be HIV positive you should discuss this with the prison doctor. Should you believe your concerns have not been dealt with by prison authorities, you should advise your consular officer and seek their advice and support. International Transfer of Prisoners Scheme Under the International Transfer of Prisoners Scheme, Australia has agreements with a number of countries which can, if certain conditions are met, enable Australian prisoners to serve out the remainder of their sentence in an Australian prison. If you re sentenced to imprisonment in a foreign country and all appeal avenues have been exhausted, you may wish to ask your consular officer to provide you with an information pack on the scheme. While there are no guarantees on the outcome, consular officers will assist you with your application as much as possible. When can a prisoner be transferred to Australia? You may be able to transfer back to Australia if: you re an Australian citizen, or an Australian permanent resident who has community ties with an Australian state or territory, such as having close relatives living in that state or territory you re imprisoned in a country with which Australia has a transfer agreement. Australia is currently able to undertake transfers with Thailand, Hong Kong and Vietnam through bilateral agreements and with over 60 countries through the Council of Europe Convention on the Transfer of Sentenced Persons. A full list of countries is available at ag.gov.au Arrested or Jailed Overseas 11

14 the terms of transfer have been agreed to by the Australian Government, the government of the country in which you re being held, yourself and the government of the Australian state or territory to which you wish to transfer your transfer is not likely to prevent your surrender to an extradition country you have at least six months of your sentence remaining to be served (unless this condition is waived or varied) neither the sentence of imprisonment nor the conviction on which it s based is subject to appeal the offence for which you re serving a sentence would also be an offence in Australia (unless this condition is waived). Your consular officer will be able to: tell you whether the country you re held in is covered by an agreement give you an information pack on the scheme (containing an application form) provide further information on eligibility requirements and conditions for transfer. Further information is also available at ag.gov.au or by ing the Attorney-General s Department on keep you updated on the progress of your application. Pardons Consular officers cannot get Australians out of prison or provide the arresting authorities with any written guarantees to secure your release from prison. The Australian Government may, if requested, initiate or support your application for a pardon. This is only where local law and practice allow and where you have served a sentence approximately equivalent to the sentence that you would have served had the offence been committed 12 smartraveller.gov.au

15 in Australia, less one year to provide time for the local authorities to process the pardon application. The granting of a pardon is entirely a matter for the authorities of the country in which the person has been imprisoned. Adapting to life in prison overseas There are often a number of things that you can do to help yourself while in prison overseas. Even though conditions in some prisons may be difficult, you should try to adapt and find activities, like sport or regular exercise, or employment to keep yourself active and occupied. Prison conditions and management vary from country to country and prison to prison, so you may need to learn new rules and routines to adjust to the prison environment. You may wish to ask the prison authorities for advice on: whether there is an opportunity for you to learn the local language (if you re imprisoned in a country where English is not widely spoken) how many letters you re allowed to send. Sometimes remand prisoners can send more letters which will give you a greater opportunity to get your personal affairs in order if and how often you re able to make telephone calls if there s an opportunity to undertake study, or if you re permitted to arrange to study through an external educational institution if any activities within the prison can contribute to a sentence reduction if it s possible to work inside the prison, whether working is compulsory, and whether this work will provide you with an income. If you have difficulties communicating with the prison authorities, or arranging activities, you should discuss your options with a consular officer. Arrested or Jailed Overseas 13

16 Passport cancellation and/or refusal in relation to serious foreign offences You should be aware that under the Australian Passports Act 2005, the Minister for Foreign Affairs may cancel your Australian passport (or other Australian travel document) if you re the subject of an arrest warrant issued in a foreign country in respect of a serious foreign offence, or if you re prevented from travelling internationally by a legal order or direction issued under the law of a foreign country (including imprisonment) in connection with a serious foreign offence. The Minister may also refuse to issue you a further Australian passport pending the outcome of all legal proceedings in a foreign country in relation to a serious offence. The cancellation or refusal of your Australian passport in these circumstances does not affect your status as an Australian citizen or the provision of Australian consular assistance to you. Returning to Australia Consular officers can provide you with the contact names and numbers of prisoner support organisations in your state or territory. These organisations can assist you to re-establish your life in Australia. For details of a range of services provided by the Department of Human Services that may assist on your return to Australia, see humanservices.gov.au. This includes information on: referrals to Employment Service Providers to help you look for work Centrelink payments such as Newstart Allowance, Age Pension, Disability Support, pensions, various family and parenting payments and payments for carers Child Support services if you are responsible for making payments for dependent children or if you are receiving child payments Medicare services such as reissue of Medicare cards, enrolment for Medicare 14 smartraveller.gov.au

17 Crisis payment prison release In addition to ongoing Centrelink payments, some of which are mentioned above, you may also be entitled to a one-off crisis payment on release. To qualify for Crisis payment prison release you must: claim within 7 days of release be in severe financial hardship have been in prison for at least 14 days as a result of being charged with an offence apply within Australia, and be entitled to a Centrelink pension or benefit If you are eligible for Centrelink payments, on your return to Australia you can usually receive: Crisis Payment-prison release immediately upon your return - equal to one week of your primary payment Primary payment (generally Newstart Allowance) a fortnight later comprising of two weeks payment You can ask for an advance of up to 7 days of your primary payment, but your next fortnightly payment will be reduced by this amount. Keep documentation that states your period in custody as you will need to provide this if you claim payments. Arrested or Jailed Overseas 15

18 Information for family members If you have concerns about a family member arrested or detained overseas or would like an update on their situation, you should contact DFAT s Consular Operations Branch in Canberra which has overall responsibility for consular case management. Information provided is subject to privacy considerations. Department of Foreign Affairs and Trade Attn: Consular Operations Branch RG Casey Building John McEwen Crescent BARTON ACT 0221 Phone or (24-hour number, cost of a local call). While we can help you and you can contact us at any time, our primary client is the person who is detained overseas. If you d like to visit your family member detained overseas, you should contact us for information on visiting arrangements before leaving Australia. Prison visiting arrangements vary widely from country to country and we recommend you make arrangements before you depart. Consular officers can also provide advice or contact details of prison authorities that can provide specific information on what can be sent or taken into prisons overseas, provide you with the full postal address and telephone number of the prison, details of the prisoner s legal representative and information about court proceedings. 16 smartraveller.gov.au

19 Getting help overseas The Australian Government will do what it can to help Australians in difficulty overseas, but there are legal and practical limits to what can be done. Consular services The Consular Services Charter sets out the standard of services all Australians can expect to receive from consular staff, including what they can and cannot do, and is available at smartraveller.gov.au. Contact details for Australian overseas missions are available at dfat.gov.au/missions. Australia has an agreement with Canada to provide consular assistance to Australians in some countries. Contact details for Canadian missions providing consular assistance to Australians are also listed at dfat.gov.au/missions. The 24-hour Consular Emergency Centre in Canberra can also be contacted for assistance from anywhere in the world on or (local call cost within Australia). Counselling services Australians overseas in need of counselling services can contact our Consular Emergency Centre on to be transferred to a Lifeline telephone crisis supporter. Arrested or Jailed Overseas 17

20 1. Register your travel and contact details online at smartraveller.gov.au before you travel overseas so we can contact you in an emergency. 2. Check the latest travel advice for your destination at smartraveller.gov.au before you go. Subscribe to receive free notification each time the advice is updated. 3. Take out comprehensive travel insurance to cover hospital treatment, medical evacuation and any activities you plan to undertake in the countries you intend to visit. While every care has been taken in preparing this brochure, neither the Australian Government nor its agents or employees, including any member of Australia s diplomatic and consular staff abroad, can accept liability for any injury, loss or damage arising in respect of any statement contained herein. Consular Policy Branch Department of Foreign Affairs and Trade, RG Casey Building John McEwen Crescent BARTON ACT 0221 Tel. (02) ; Information for travellers and travel advisories are available from the Department of Foreign Affairs and Trade s Smartraveller website smartraveller.gov.au. May 2014

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